In a world that is only developing its globalisation, more and more individuals and families are mobilising across borders. In the year to December 2024, the Office for National Statistics (ONS) estimated that 517,000 emigrated from the UK. The provisional estimate for the same time period for immigration into the UK was 948,000. There are any number of reasons people may choose to leave the UK including tax purposes, lifestyle, weather, cost of living and much more. However, when it comes to the Family Justice System many come to the UK, or wish to remain somehow connected with it in order to take advantage of the safety net offered by the UK divorce laws.
London has often been considered the divorce capital of the world. Although in recent years this position has come under threat, particularly with modernisation of family law systems in places like the UAE, the English divorce law remains one of the most favourable in the world. This is especially true for the financially weaker spouse.
However, couples wishing to divorce in England and Wales need to fulfil at least one of the relevant connecting criteria:
- Both spouses are habitually resident in England or Wales
- The spouses were both last habitually resident in England and Wales and one spouse continues to live here
- The respondent to the divorce petition is habitually resident in England and Wales
- The application is habitually resident in England and Wales and has resided in the jurisdiction for at least 12 months immediately prior to the application being made
- The applicant is both domiciled and habitually resident in England or Wales – and has resided in the country for at least 6 months prior to the application being made
- Both spouses are domiciled in England or Wales
- One spouse is domiciled in England or Wales
These criteria can be very confusing. If you are unsure of whether you qualify to put in a divorce petition in the UK, you should speak to an expert family lawyer in this jurisdiction.
Family lawyer Subecca Sheikh, Associate in our London Office, explores the difference between habitual residence and country of domicile.
What is habitual residence for divorce UK?
Habitual residence is not defined in law but the courts will apply it in relation to a person’s centre of interest. This essentially means where someone has an established base. You can only be habitually resident in one country, but you can be resident in more than one country.
Your residence needs to be fixed but not necessarily permanent – the test is usually ‘quality over quantity’. Essentially, the purpose of your being habitually resident in England and Wales will be tested, rather than how long your stay has been. Because of this, habitual residence can be established immediately upon arrival in a country if your intention is to remain.
Factors that will be taken into consideration when deciding habitual residence include, but are not limited to:
- Where your spouse or any children live (or are at school)
- Motivation behind your being in England and Wales
- Where you are employed
- Where you pay tax
- Where your bank accounts are
- Where you are registered to vote
For example, you would be habitually resident in England if your primary home was here, and you pay taxes in the UK, even if you spend much of the year at a second property abroad.
You would also be habitually resident if you came to England as a foreign national but intended to remain for an extended period – this might be exemplified by the purchase of a house, or new employment in England was found.
Can you be habitually resident in England and Wales if your spouse lives elsewhere?
You can be habitually resident in England and Wales if your spouse lives elsewhere. Your habitual residence is where you have your centre of interest, which may differ from your spouse’s. This may be because you have already separated and are living in different countries.
It could also generally be throughout the marriage that your centre of interest is different, for example if one of you works abroad for the majority of the year and pays taxes in the other country. Marital status doesn’t impact habitual residence.
What is domicile for divorce UK?
Domicile is a concept unique to the UK. In other countries, the test will be on your nationality. Domicile is found based on legal principles rather than fact finding (the fact-finding approach is taken with habitual residence).
Domicile is the permanent place where your main home is. This may be that you live there most of the time or intend to return in the future.
Domicile is acquired automatically at birth – it will be the same as your father’s if your father was married to your mother at the time of your birth. If your parent were unmarried, or your father passed away before your birth, you will acquire your mother’s domicile.
There are three strands of domicile:
- Domicile of Origin – this is associated with your parents’ country of domicile
- Domicile of Dependency – if you are under 16, you acquire the domicile of the person you are dependent on
- Domicile of Choice – requires residency in the country of choice and an intention to stay permanently. You cannot acquire domicile of choice unless you are also habitually resident in that country. This is where fact-finding will become relevant in a divorce case as the court will need to find you fixed in England or Wales
It is important to note that your country of domicile could also be somewhere you have never been, if it was the country of domicile of your father.
You can be habitually resident somewhere, but domiciled in a totally different country. The same can apply to your spouse. You could have the option, therefore, of divorcing in different jurisdictions.
You can also be domiciled in a different country to your spouse. Before 1974, upon marriage, a woman would take on the domicile of her husband. However, the 1973 Domicile and Matrimonial Proceedings Act changed this so that the domicile of a woman would be ascertained by her independent factors, not in relation to her husband.
The importance of legal advice
Habitual residence and country of domicile are legal terms relating to not just where you live, but your intentions for the future, where your centre of interest is held, where you pay taxes, or children attend school etc. There are lots of moving parts to the concepts, and they can be further complicated by the growing movement of people across the world.
An expert family lawyer can ascertain whether you can file a divorce petition in England and Wales. You will need to know this as you won’t be able to submit a divorce application via the Government website unless you can prove you fulfil the relevant criteria.
